Employment law update – No condonation – no jurisdiction

December 1st, 2021
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SAMWU obo Moloisane and Others v City of Tshwane Local Municipality and Others (LC) (unreported case no JR850/19, 9-9-2021) (Prinsloo J)

In this instance, three applications involving the same parties were served before the Labour Court (LC). The first was an application brought by the South African Municipal Workers’ Union (SAMWU) (the union) to review and set aside an arbitration award, which was opposed by the municipality. The second was an application brought by the municipality to have the union’s review application dismissed or deemed to be withdrawn. The third application was brought by the union to reinstate its review application.

In terms of its review application, the union alleged the award, which it sought to be reviewed and set aside, was delivered to it on 12 March 2019. It served its review application on the municipality on 29 April 2019 and filed same at the LC on 2 May 2019.

In its answering affidavit to the review application, the municipality stated that it handed the union a copy of the award on 15 March 2019 and raised the point that the union filed its application outside the prescribed six-week period and thus should apply for condonation. The union did not file a replying affidavit.

In the municipality’s application to dismiss the union’s review application, the municipality once again raised the issue of condonation. The union, in its answering affidavit simply denied that it was late in filing its papers, however, did not go further to explain why it took this position.

In dealing with the three applications, the LC began by addressing its jurisdiction to hear the matters. It is accepted that if a review application is filed outside the statutory period, the LC does not have jurisdiction to entertain the application, until such time as condonation is sought and granted.

On the union’s version, having received the award on 12 March 2019, the last day in which to file its review application would have been 23 April 2019. On the municipality’s version, the union received the award on 15 March 2019, whereafter it ought to have filed its review application on 29 April 2019, yet it only filed it on 2 May 2019.

Therefore, on both versions, the union filed its papers outside the prescribed time.

The LC reiterated the position (as set out in Mbatha v Lyster and Others (2001) 22 ILJ 405 (LAC)) that an applicant in a review application, must not only serve their application on the respondent within the six-week period, but must also ensure that their application is filed at the LC within the said time period. In this case, and on the municipality’s version, although the union served its review application on the municipality on the last day of the six-week period, it only filed its application on 2 May 2019 and thus the union was obliged to apply for condonation.

Going further the LC held:

‘In Ellerine Holdings Ltd v Commission for Conciliation, Mediation and Arbitration and Others [(2002) 23 ILJ 1282 (LC)] the court has held that:

“Where the non-compliance relates to a statutory provision, ie as set out in an Act, then failure to comply with those provisions goes to jurisdiction. In such cases (for example where time-limits relate to jurisdiction) an application must be made to court to condone the non-compliance. In circumstances where the time-limit is prescribed by the rules, this court would be prepared to entertain a matter in spite of the fact that the pleadings were not filed within the prescribed time-limits, as long as there is no objection thereto by the party who stands in opposition to the party who has failed to comply with the time-limits prescribed by the rules of this court.”

The late filing of a review application constitutes a failure to comply with a statutory provision and not a time limit prescribed by the rules and the applicant had to apply for condonation. The review application in casu was filed with the Registrar on 2 May 2019, evidently outside the prescribed six-week period. In casu there is no application for condonation for the late filing of the review application.’

The LC again noted that the Labour Appeal Court in SA Transport and Allied Workers Union and Another v Tokiso Dispute Settlement and Others (2015) 36 ILJ 1841 (LAC) held that when an applicant files its review application outside the statutory period, even by one day; the LC cannot assist that party without first addressing the issue of condonation.

Following the above string of authorities, the LC found that absent an application for condonation, it did not have jurisdiction to hear the union’s review application.

On the issue of costs and while acknowledging the rule that costs do not automatically follow the result in the LC, the court took issue with the fact that the union was informed of the need to apply for condonation on two occasions over the past years. Instead of dealing with this issue, it persisted with its refusal to address the issue meaningfully. The union’s attitude on this score warranted an adverse cost order against it.

The LC ordered that the review application be struck off the roll for lack of jurisdiction and that the union pay the municipality’s costs.

Moksha Naidoo BA (Wits) LLB (UKZN) is a legal practitioner holding chambers at the Johannesburg Bar (Sandton), as well as the KwaZulu-Natal Bar (Durban).

This article was first published in De Rebus in 2021 (Dec) DR 36.

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